1 SUPPORTING STATEMENT FOR ICR 0220.11

CLEAN WATER ACT 404 ST ATE-ASSUMED PROGRAMS

1. Identification of the information collection 1(a) Title of the Information Collection Clean Water Act Section 404 State-Assumed Programs (Renewal)

1(b) Short Characterization/Abstract

This information collection request has three parts:

A. Information needed for States or Tribes to reques t program assumption. B. Information needed from permit applicants.

C. Information included in the State or Tribe’s annual report.

A. Section 404(g) of the Clean Water Act (CWA ) authorizes States [and Tribes] to assume the CWA Section 404 permit program. States/Tribes must demonstrate that they meet the statutory and regulatory requireme nts (40 CFR Part 233) for an approvable program. Specified information and documents must be submitted by the State/Tribe to the Environmental Protection Agency (EPA) to request assumption. Once the required information and documents are submitted and EPA has a complete assumption request package, the statutory time clock for EPA’s decision to either approve or deny the State/Tribe’s assumption request starts. The information contained in the assumption request is made available to the other involved federal agencies (Corps of Engineers, Fish and Wildlif e Service and National Mari ne Fisheries Service) and to the general public for review and comment.

B. States/Tribes must be able to issue permits that comply with the CWA Section 404(b)(1) Guidelines, the environmental review criteria. States/Tribes and the revi ewing federal agencies must be able to review proposed projects to evaluate, avoid, minimize and compensate for anticipated impacts. EPA’s assumption regulations establish recommended elements that should be included in the State/Tribe’s permit applicati on, so that sufficient information is available to make a thorough analysis of anticipated impacts. These minimum information requirements are based on the information that must be submitted when applying for a CWA Section 404 permit from the Corps of Engineers.

EPA is responsible for oversight of assumed progra ms to ensure that State/Tribal programs are in compliance with applicable requirements and th at State/Tribal permit decisions adequately consider and minimize anticipated impacts.

C. States/Tribes must evaluate their programs annually and submit an annual report to EPA assessing their program. EPA’s assumption regu lations establish minimum requirements for the annual report.

2. Need for and use of the Collection 2(a) Need/Authority for the Collection Section 404(g) of the CWA authorizes States [T ribes] to assume the federal CWA Section 404 permit program. Implementing regulations (40 CF R 233) establish specific information that2 must be submitted by the State to request prog ram assumption. EPA is charged with approving or denying a State/Tribe’s assump tion request and overseeing/mon itoring the overall operation of the assumed program subsequent to approval.

2(b) Practical Utility/Users of the Data

A. States and Tribes can assume the CWA S ection 404 permit program (CWA 404(g)). States and Tribes must meet certain prog ram requirements to be eligible to assume the federal program. These requirements are in the CWA and in impl ementing regulations (40 CFR 233). To assume the CWA Section 404 permit program, States an d Tribes must have a wetland regulatory program similar to the federal permit program admi nistered by the Corps of Engineers. States

and Tribes must submit sufficient information fo r EPA to determine that the State or Tribe’s program: has an equivalent scope of geographic jurisdiction as th e federal program; regulates at least the same activities as the federal program ; provides for sufficient public participation; ensures compliance with the CWA Section 404(b )(1) Guidelines, which provide environmental criteria for permit evaluation and decision; and has adequate enforcement authority.

States and Tribes must submit required informati on if they want to assume the federal permit program. A complete assumption application (40 CFR 233.10) includes copies of all applicable statutes and regulations includi ng those governing applicable admi nistrative procedures, a letter from the governor or equivalent tribal lead er requesting program assumption, an Attorney General’s statement regarding the adequacy of the legal authorities for the State or Tribe’s program (40 CFR 233.12), a Memorandum of Agreement with the EPA Regional Administrator (40 CFR 233.13), and a memorandum of Agreemen t with the Secretary of the Army acting through the Corps of Engi neers (40C CFR 233.14).

The required program descripti on (40 CFR 233.11) must include the following information: scope and structure of the State or Tribe’s progr am including extent of jurisdiction, activities regulated, anticipated coordinati on, permit review criteria, the sc ope of permit exemptions (if any), procedures for permitting and administrativ e and judicial review, available funding and manpower, anticipated workload, copies of perm it application forms, permit forms and reporting forms, the State or Tribe’s compliance evalua tion and enforcement progr am, clarification of

waters to be under State or Trib al jurisdiction and waters to re main under the jurisdiction of the Corps (a comparison of State/Tr ibal and federal methodologies for delineating wetlands must also be included), and specific best management practices (BMPs) propose d to satisfy exemption provisions for farm, forest and temporary mining roads.

EPA provides a copy of the assumption request to the Corps of Engineers, Fish and Wildlife

Service and National Marine Fi sheries Service for review a nd comment. EPA publishes notice of the assumption request and solicits public comments on the assumption request. EPA also holds public hearing(s) on the assumption request.

EPA reviews the documentation submitted by the State/Tribe and considers comments received from the public and the federal review agencies in making a decision to either approve of deny the assumption request.3 B. States and Tribes must have the ability to issue permits that comply with the CWA Section 404(b)(1) Guidelines, the environm ental review criteria (40 CFR 233.20). States and Tribes and the reviewing federal agencies must be able to review proposed projec ts to evaluate, avoid, minimize and compensate for anticipated impact s. EPA’s regulations establish recommended elements (40 CFR 233.30) that should be included in the State or Tribe’s permit application so

that sufficient information is available to make a thorough analysis of anti cipated impacts. These minimum information requirements are based on th e information that must be submitted when applying for a Section 404 permit from the Corps of Engineers.

EPA coordinates federal review of a subset of State/Tribal permits. The intent of this review is to assure that State/Tribal permits comply w ith the CWA Section 404(b) (1) Guidelines, develop appropriate permit conditions to minimize adverse impacts and consider alternatives. To reduce delays in permit processing and to ensure adeq uate State/Tribal progr ams, requirements for elements in the permit application were written into the federal regulations. These regulations incorporate much of the permit application information requireme nts contained in the Corps’ regulations (33 CFR 325).

C. EPA is responsible for oversi ght of assumed State or Tribal programs to ensure that the State or Tribal program is in compliance with applicab le requirements and that the State/Tribal permit decisions adequately consider, avoid, mini mize and compensate for anticipated impacts (§404(l)). EPA’s State Program Regulations es tablish minimum requirements for the State or Tribal annual report (40 CFR 233.52).

If a State or Tribal assumed pr ogram is not administered in acc ordance with requirements, EPA can revise the provisions for waiv er of federal review of State/ Tribal permits and, in extreme situations, initiate withdr awal of the assumed program. To have a sound basis to initiate such an action, oversight and analysis of the State/ Tribe’s permitting actions must be done. The State/Tribe is the only source of basic permit data such as number of permit applications

received and final action of th ese applications. The State/Tr ibe should also be given the opportunity to evaluate and presen t their interpretation of this information and to identify any problems encountered in administering their pr ogram and recommendations for addressing these problems.

3. Non-duplication, Consultation s, and Other Collection Criteria 3(a) Non duplication In most cases State/Tribal assumption of the federal permit program eliminates duplication. Prior to an approved assumption, a permit applic ant would have needed to get two separate permits for his proposed project – one from the Co rps of Engineers and one from the State/Tribal agency (if the State/Tribe has a wetland regulat ory program). After assumption is approved by EPA, only one permit is needed – from the appr opriate state agency. A federal permit is no longer needed.

EPA identified information that the State/Trib e should include in its annual report. This information includes permit numbers – number of applications received, processed, approved, denied, modified; number of enforcement actions taken and the outcomes. This type of4 information may be needed by the State/Tribe for its own purposes – program evaluation, budget justification, etc. If the State/Tribe prepares th is type of information for its own needs, EPA will let the State/Tribe select the peri od of time for the annual report to enable the State/Tribe to reuse this information for both purposes.

3(b) Public Notice Required Prior to ICR Submission to OMB First notice for renewing this ICR was pub lished in the Aug 26, 2009, Federal Register (copy attached to this supporting statement). No comm ents were received in response to this Federa l Register notice.

3(c) Consultations Peg Bostwick, Chief, Wetlands, Lakes and Streams Unit Land and Water Management Division Michigan Department of Environmental Quality

P.O. Box 30458 Lansing, Michigan 48909-7958 (517) 335-3470

Tom Micai, Administrator Land Use Regulation Program New Jersey Department of Environmental Protection

P.O. Box 439 Trenton, New Jersey 08625 (609) 777-0454

3(d) Effects of Less Frequent Collections A. The information needed to request program assumption is submitted only once – at the time of the formal request to assume the federal permit program.

B. Since each permit is for a spec ific project in a sp ecific location, a permit application must be submitted and processed for each project unless aut horized by a general permit. The information is needed to evaluate the impact s of the specific project in the pa rticular location in which it is

sited.

C. Once a year reporting on the operation of its assumed program is an appropriate period of

time for both EPA and the State/Tribe to evalua te operation of the assumed program, identify trends and/or problems, and “solu tions” to any identified problems.

3(e) General Guidelines None applicable

3(f) Confidentiality EPA does not make any assurances of confidentiality for this information.5 A. The information included in the State/Tribe’ s assumption request is made available for public

review and comment.

B. The information included in a permit applic ation is made available for public review and

comment.

C. The information included in the annual repor t to EPA is made available to the public.

3(g) Sensitive Questions Not applicable

4. The Respondents and the Information Requested 4(a) Respondents/SIC Codes

A and C. States and Tribes are the identified respondents since the CWA authorizes only States and Tribes to assume the federal permit program.

B. Respondents are not identified by industr y or business. Anyone who proposes a project which involves the discharge of dr edged or fill material into wate rs within the jurisdiction of a State/Tribal assumed program must submit a permit application to either the State or Tribe unless authorized by a general permit.

4(b)Information Requested (i) Data items, including record keeping requirements A. The information needed for a complete assumption package is listed at 40 CFR 233.10: 1. Letter from the governor or Tribal equivalent formally requesting program assumption, 2. A complete program description (40 CFR 233.11), 3. Attorney General’s statement (40 CFR 233.12), 4. Memorandum of Agreemen t with EPA (40 CFR 233.13), 5. Memorandum of Agreement w ith the Corps (40 CFR 233.14), and 6. Copies of all applicab le statutes and regulations.

Record keeping No specific record keeping requirements.

B. Information that is needed for a comple te permit application is listed at 40 CFR 233.30: 1. Name, address, and phone number of th e applicant and adjoining property owners, 2. Complete description of the proposed project, 3. Description of the type, composition, s ource and quantity of the material to be discharged, 4. Certification that all the information submitted is true and accurate, and 5. Any additional information requested by the State/Tribe to evaluate the project impacts.6 Record keeping See record keeping requirements for C below.

C. Information that should be included in th e annual report is listed at 40 CFR 233.52. Items

that should be included in the annual report are an assessment of the cumulative impacts of the State/Tribe’s program on the integr ity of the regulated waters; iden tification of areas of concern or interest; the number and nature of individual and general pe rmits issued, modified, denied; and number of enforcement actions taken, number of suspected unauthorized activities reported and nature of the action taken; and an estimate of the extent of activit ies regulated by general permits.

Record keeping States/Tribes with assumed programs are requi red to submit an annual report to EPA (40 CFR 233.52) evaluating the State’ s program. Items that should be addressed in the annual report include an assessment of the cumulative impacts of the State/Tribe’s permit program on the integrity of the State/Tribe’s waters; identification of areas of particular concerns and/or interest; the number and natu re of individual and general permits issued, modified or denied; number of violations identified and the number and nature of enforcement action taken; number of suspect ed unauthorized activities reported and nature of action taken; an estimate of extent of activities regulated by general permit; and the number of permit applications received but not yet processed.

5. The Information Collected-Agency Activi ties, Collection Methodology, and Information Management 5(a) EPA Agency Activities A. Agency activities associated with re view of a State/Trib al assumption request

 determine if assumption request is complete ; notify State/Tribe within 30 days that application is complete,

 within 10 days, send copy of assumption re quest to the appropriate Corps, FWS and NMFS office,

 publish public notice about receipt of assumption request,

 hold public hearing(s),

 review public comments received,

 make decision to approve or deny assumption request,

 notify other federal agencies about the decision,

 notify the State/Tribe about the decision, and

 publish notice of decision in the Federal Register

.

B. Agency activities associated with re view of a State/Trib al permit application

 State/Tribe will forward the public notice for any permit application subject to federal review (40 CFR 233.51) to EPA,

 EPA will provide a copy of the public notice to the appropriate Corps, FWS and NMFS office for review and comment,

 if EPA intends to comment to the State/Tr ibe on the permit application, EPA will notify the State/Tribe of this intent within 30 days,7  if the State/Tribe has been so notified, the perm it shall not be issued until after receipt of the comment or 90 days from EPA’s receipt of the public notice, and

 if the State/Tribe receives comments from EPA either objecting to the permit or requesting permit modification, the permit shall not be issued until such objections or request for modification are resolved.

C. Agency activities associated with review of the annual report

 the State/Tribe shall submit a draft annual report to EPA within 90 days of the end of the identified reporting period,

 the State/Tribe shall make the draf t report available to the public,

 within 60 days, EPA shall complete review of the draft report and submit comments, questions or request for additiona l evaluation to the State/Tribe,

 within 30 days of receipt of EPA’s commen ts, the State/Tribe will finalize the annual report incorporating or res ponding to EPA’s comments, and

 upon acceptance of the annual report, EPA w ill publish notice of av ailability in the

Federal Register

.

5(b) Collection Met hodology and Management The use of automated, electronic, mechanical, or other technological information collection techniques is not appropriate for this information.

A and C. The State/Tribe is the only source of this information in that they know the statutes and regulations under which their programs are authori zed. The State/Tribe is the best source of information about their program – funding and ma npower, permit application forms, numbers of permits processed, number of enforcement actions taken and disposition of these actions, and analysis of the cumulative impact of the program.

B. The permit applicant is the be st source of information about th e proposed project. Only the applicant knows what the purpose of the project is and what is planned. The applicant must complete a permit application form and submit the completed form to the State/Tribal agency administering the assumed program. This informa tion is used by the State/Tribe to evaluate the impact of the proposed project and by the federa l review agencies. The information is made available to the public in a public notice if an indivi dual permit is required.

5(c) Small Entity Flexibility Small entities need to apply for a permit if a pl anned project involves the discharge of dredged or fill material into waters regul ated by the assumed program. Th is is required of anyone who proposes to discharge. The information required from small entities applying for a State/Tribal permit in an assumed program is the same info rmation that would have been required from the Corps if the State/Tribe ha d not assumed the program.

EPA’s State/Tribal Program Regulations ( 40 CFR 233.30(d)) provide flexibility for small projects in that the level of detail of information required in the permit application should be commensurate with the type and size of the project/discharge.8 5(d) Collection Schedule A. The State/Tribe’s assumption request is a one-time request. The timing of this request is determined by the State or Tribe.

B. A permit application is submitted each time someone plans to do work that involves the discharge of dredged or fill material into wate rs of the United States. The timing for submitting a permit application is determined by the permit applicant.

C. The State/Tribe must submit an annual report to EPA assessing its operation of the program. The yearly period reported on in the annua l report can be set by the State/Tribe.

6. Estimating the Burden and the Cost of the Collection 6(a) Estimating Respondent Burden

A. We estimate that a State/Tribe will need 52 0 hours (approximately 1/4 of a work year) to prepare the documentation for EPA to determine th at a State/Tribe’s assumption is complete. We estimate that two States or Tribes may request program assumption over the next three years.

This results in a total on e-time burden of 1,040 hours.

B. We estimate that the average time needed to review a permit application is five hours. The actual time to review a permit application will va ry greatly depending on the size and location of a planned project. Small projects will require less time; large, complex projects could require significantly more time. We estimate that the “average” assumed program will process 5,000 permits a year. This results in a burden of 25,000 burden hours per year per assumed program. This figure will vary with the assumed program. It is likely that some State/Tribes will have significantly fewer permit applications requested each year; others may have more. The number of yearly permit applications may vary.

C. We estimate that a State/Tribe will need 80 hours (two working weeks) to collect and analyze the information and prepar e the annual report.

6(b) Estimating Respondent Costs (i) Estimating Labor Costs

A. We estimate that a State/Tribe will need 52 0 hours (approximately 1/4 of a work year) to prepare the documentation for EPA to determine th at a State/Tribe’s assumption is complete. We estimate that $56,411 (starting point of a GS-11) is an average State/Tr ibal employee salary. This results in a one-time cost of $14,100. We es timate that two States or Tribes may request program assumption over the next three years. This results in a tota l salary cost of $28,200. Adding a 1.6 overhead factor results in a cost of $45,120.

B. It is impossible to estimate the cost of filing an “average” permit application. The application for small projects can be completed by the permit applicant with little cost incurred. The permit application for larger , complex projects may require hiring outside parties such as environmental and engineering fi rms, surveyors, and lawyers.

C. We estimate that a State/Tribe will need 80 hours to collect and analyze the information and9 prepare the annual report. Using the $56,411 for an average State/Tribal em ployee salary results in an approximate salary cost of $2,160 to prepare the annual report. Adding a 1.6 overhead factor results in a cost of $3,456.

(ii) Estimating Capital and Op erations and Maintenance Costs

None

(iii) Capital/Start-up Opera ting and Maintenance (O&M) Costs

None

(iv) Annualizing Capital Costs

None

6(c) Estimating Agency Burden and Cost

A. Each State/Tribal request to assume the Section 404 permit program mu st be reviewed by the federal government. EPA is the agency responsible for making a decision to either approve or deny an assumption request; the Corps of Engineers, Fish a nd Wildlife Service and National Marine Fisheries Service review and provide comments to EPA on the adequacy of the State/Tribe’s program. We estimate that this review requires approximately 200 hours (approximately 1/10th of a work year). At the rate of a GS-13 (average salary of $80,402), this translates into a federal salary cost of $8,040 per assumption request. This results in a total salary cost of $16,080. Adding a 1.6 overhead f actor results in a cost of $25,728.

B. We estimate that federal review will be conduc ted on only a very small subset of State/Tribal permit applications – approximately 25 permits per State/Tribal program. The permits subject to federal review tend to be the larger projects with more potential for adverse environmental impacts. Because of this, we estimate that federal review will av erage 80 hours per permit application. This results in an annual burden of 2,000 burden hours (approximately 1 work year) per assumed program. At the rate of an aver age GS-11, this results in approximately $56,411 in salary cost. Adding a 1.6 overhead f actor results in a cost of $90,258.

C. We estimate that review of each State/Tribal annual report will take approximately 40 hours. At the rate of a GS-12 (average salary of $67,613 ), this translates into a salary cost of approximately $1,300 per annual report. This resu lts in a total salary cost of $5,200. Adding a

1.6 overhead factor results in a cost of $8,320.10 6(d) Estimating the Respondent Univ erse and Total Burden and Costs

Respondent Burden & Cost Agency Burden & Cost
A: Program Assumption Request

Number of States/Tribes to apply 2 2

Application Hours per Request 520 200 Total Hours Requested 1040 400 Current OMB Inventory (Hours) 1040 400 Cost per Response $14,100 $8,040

Total Cost with Overhead $45,120 $25,728

B: Review of Permits State/Tribal Review of

Permits Agency Review of

Permits Number of Permit Applications Reviewed (per State/Tribe) Annually 5,000 25

Application Hours per Permit 5 80 Total Hours Requested per

State/Tribe 25,000 2,000

Total Hours Requested for 4 State/Tribal Assumed Programs 100,000 8,000

Current OMB Inventory (Hours) 100,000 8,000 Total Cost of Review per

State/Tribe (too variable to calculate) $56,411

Total Cost with Overhead for

4 State/Tribal Assumed Programs (too variable to calculate) $361,030

C: Annual Report State/Tribal Development of Annual Report Agency Review of Annual Report

Number of States/Tribes that have Assumed the Program 4 4 Hours per Report 80 40 Total Hours Requested 320 160 Current OMB Inventory (Hours) 320 160 Cost per Report $2,160 $1,300

Total Cost with Overhead $13,824 $8,320

6(e) Bottom Line Burden Hours and Cost Tables The total average burden to states for assumed Section 404 permit programs is 101,360 hours. Costs will vary widely by state and permit, however there are no ca pital or O&M costs.

The burden to EPA for related activities is 8,560 hours and $395,078 in labor costs.11 6(f) Reasons for Change in Burden

None

6(g) Burden Statement This collection of information is separated in to three pieces. The annual public reporting and record keeping burden for this collection of in formation is estimated to average 520 hours to request program assumption, 5 hours to complete a permit application and 80 hours to prepare the annual report.

Burden means the total time, effort, or financ ial resources expended by persons to generate, maintain, retain, or disclose or provide informati on to or for a Federal agency. This includes the time needed to review instructions; develop, acq uire, install, and util ize technology and systems for the purposes of collecting, validating, and ve rifying information, processing and maintaining information, and disclosing and providing informatio n; adjust the existing ways to comply with any previously applicable instructions and require ments; train personnel to be able to respond to a collection of information; search data s ources; complete and revi ew the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not requir ed to respond to, a collection of information unless it displays a currently valid OMB control number. The OM B control numbers for EPA’s regulation’s are listed in 40 CFR part 9 and 48 CFR chapter 15.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for mini mizing respondent burden, including the use of automated collection techniques, EPA has establis hed a public docket for this ICR under Docket ID Number EPA-HQ-OW-2005-0023, which is available for online viewing at http://www.regulations.gov, or in person viewing at the Office of Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave., NW, Washington,

DC. The EPA Docket Center Pub lic Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal ho lidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426). An electronic version of the public docket is available at http://www.regulations .gov. This site can be used to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. When in the system, select “search,” then key in the docket ID Number EPA- HQ-OW-2005-0023. Also, you

can send comments to the Office of Information a nd Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA.

Please include the EPA Docket ID Number (EPA-HQ-OW-2005-0023 ) and OMB Control Number (2040-0168) in any correspondence.